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EFF shoots down "making available" argument in Jammie Thomas case

23 June 2008 12:47 by Rich "vurbal" Fiscus | 2 comments

Last week we told you about briefs filed both for and against Jammie Thomas in her quest to get a new trial for alleged copyright violations from sharing songs via P2P. In addition to the MPAA and respected copyright scholars, the Electronic Frontier Foundation (EFF) has also filed a "friend of the court" brief. Not surprisingly the public interest group makes arguments specifically addressing the claim that "making available," or the mere act of sharing files on P2P, is a copyright violation.

While the MPAA's arguments largely center on the premise that the meaning of a law must be interpretted in whatever way aligns them best with treaties the US is a party to, the EFF points out a more fundamental legal principle - that of plain meaning. Plain meaning basically says if there's a clear and obvious way to interpret the wording of a law that's how it must be read.

According to the brief,filed on June 20 by the EFF, Public Knowledge, the United States Internet Industry Association (USIIA), and the Computer & Communications Industry Association (CCIA), "In sharp contrast to choices Congress has made elsewhere, the language of � 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the �making available� of copyrighted works. When Congress means to prohibit offers to act, as well as the acts themselves, it has done so expressly."

They go on to argue that interpretting the Copyright Act as the RIAA and MPAA are arguing would have more widespread effects than making it easier to go after file sharers. They point out that existing licensing agreements in all sorts of industries depend on the specific legal meaning of terms like distribution, reproduction, and public performance. By changing the meaning of these words, they warn, you open the door for content owners to require additional licenses from broadcasters. To Illustrate their point, the groups give a real-world example.

"This concern is not merely hypothetical� several Plaintiffs here sued XM Satellite Radio, alleging that although XM enjoys a statutory public performance license to transmit their works, it infringed plaintiffs� copyrights by �distributing Plaintiffs� copyrighted sound recordings to the public by making available and automatically disseminating to [its] subscribers copies of sound recordings contained in its satellite radio transmissions.�

You can find the complete text of the brief on the EFF website.

Permalink to this article | Topic: Lawsuits & Legislation

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Discuss this article!
ZippyDSM (AfterDawn Addict) 23 June 2008 12:53
Distribution alone is not something they can win on,they need to focus more on "illicit profit" than simply "making available" [ + quote]
nobrainer (Inactive) 23 June 2008 12:58
so the average user installs a piece of software that a site requires to download their 100% legal material and the shared folder is automatically added, which the user is using to send media around their home and unknowing to the user its uploaded all files in this folder including the DRM'ed downloaded digital media, & as its against the law to circumvent the DRM on the digital files they are unable to burn it to a disc so the only way to play it is via the network but at the same time the software has shared the copywrited media to a file sharing network and is hunted down and hung drawn and quartered by the riaa/mpaa even though not a single byte had left her system! MPAA: actual P2P distribution often "impossible" to prove *Originally posted by hyper:* Copyright holders shouldn't have to prove that an unauthorized distribution of their work occurred in order to collect damages, according to the Motion Picture Association of America. these companies behind the MPAA/RIAA Ect, really will face a slow painful death one ppl know who the are and they are no longer able to hide behind the AA titles. The BPI Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The RIAA Soundexchange Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The IFPI Are: The same anti consumer lot as listed above! The MPAA Are: SONY, UNIVERSAL, WARNER GROUP, DISNEY, PARAMOUNT, FOX. [ + quote] This message has been edited since posting. Last time this message was edited on 23 June 2008 13:04**